Money Bomb Results and The Job of a U.S. Representative

Last Friday to a packed room at a Liberty Bell Center of Constitutional Studies meeting, I had a very interactive discussion with the attendees on the job of a U.S. Congressman per the Constitution of the United States.

Below are the notes in outline fashion from the talk, arranged by topic with references.  We spent the most time on the “War” and “Economic Powers” sections as these impact current events the most.  I am available to review the below with any other local group, and also have an online lesson plan to teach the basics of the Constitution, which are probably a good prerequisite for this talk.

The United States Constitution was written under the principle of “positive grant.” This means the federal government is authorized to exercise only the powers which are specifically given to it by the Constitution, and nothing more.

I wanted to send a thank you to all donors who contributed to yesterday’s STOP THE WARS grassroots money bomb yesterday.  35 donors contributed $1,335.09 yesterday.  The event was held to help finish the March 31st quarterly financial reporting cycle strong, and feel free to chip in by hitting the button below!!

March 30, 2010

OATH OF OFFICE Article VI, Clause 3

• All Senators and Representives of the federal Congress, and members of state legislatures are oathbound to support the Constitution.  State legislature members are also oathbound to their state Constitution.
• This is the only required oath of office.
• Article 1, Section 4 stipulates that Congress “shall assemble at least once per year” which demonstrates the original scope of Congress was quite small.

WAR

• Article I, Section 8 “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;”
• The gravest power that Congress has is to declare War - Why do you think this power was vested in the House of Representatives and the Senate rather than the President?
• A: President was never meant to have broad executive power, the founders feared a monarch/dictator.  As the House of Representatives was directly and frequently elected by the people, it was viewed as the safest place to entrust a declaration of war, and people unhappy with Representatives could remove them fairly quickly.

RIGHT TO BEAR ARMS and STANDING MILITIA and NAVY

1. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  True intent of the 2nd Amendment is not to safeguard self-defense, hunting, etc. but to maintain freedom from the tyranny of government.

2. From Article I, Section 8: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

3. By extension a standing Air Force and Marines – but no standing Army sanctioned by the Constitution

ECONOMIC POWERS

• Please also read “To Nancy Pelosi on Health Care“

• Within the last century, several American lawyers have claimed the founder’s definition of commerce was “all gainful activities” or “all human interactions.” This has been taken by the federal Government as authority to control not just health care, but the minimum wage, manufacturing, agriculture, the mining, oil and lumber industries, possession of firearms, land use, criminal law such as federal drug laws, and environmental protection, in most cases usurping states’ rights per the 10th Amendment and in some cases even inventing jurisdictions.

• Article 1, Section 8 - “The Congress shall have Power… to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

  • “regulate Commerce… among the several States” and I suggest that in blunt language she instead literally means to “control the economy… of the States.”

  • Regulation, in today’s dictionaries, means “a governmental order having the force of law.”

  • The founders believed “regulate” to literally mean ‘to make more regular’ or, per Black’s Law Dictionary at the time, “a rule or order prescribed for management or government; a regulating principle; a precept.” In other words, regulate meant that Congress should in principle assist with Commerce disputes between the States, but did not grant Congress the power of law to inflict criminal penalties.

• Federalist #42 and India example (see here)  The Federalist Papers were a public debate while the Constitution was being ratified.

• Dr. Robert Natelson wrote a well-documented paper “The Legal Meaning of ‘Commerce’ in the Commerce Clause” in 1996. After examining thousands of instances of ‘Commerce’ used in contemporary legal documents, Natelson concluded that commerce simply and exclusively meant “exchange” or “traffic” and its associated activities, such as navigation, to the founders. In simple English, commerce benefits agriculture or manufacturing, but does not include either agriculture or manufacturing.

• Furthermore, Natelson notes:  “If we read “Commerce among the several States” to mean “all gainful economic activity among the several States,” then the clauses by which Congress is empowered to regulate commerce with “foreign Nations” and the “Indian Tribes” become either largely redundant or nonsensical. Even more seriously, if the Commerce Clause grants Congress power to regulate all economic activities, then some of Congress’ other economic powers become surplus.”

• “Necessary and Proper” clause – only applies to the above listed (enumerated) powers in Article 1, Section 8, and were certainly not intended for a power grab.

• “There are 2 parts where “general Welfare” is mentioned in the Constitution  http://www.usconstitution.net/const.html (See comment thread here)

  • The Preamble which states:  ”We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

  • And Article I, Section 8, Clause 1 which you referenced.   “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

• Okay, for the Preamble’s “promote the general Welfare” first –

  • 1) Nothing could be more natural than to state a generality and then explain it later.  If the phrasing were so open – that the gov’t could do WHATEVER it wanted if “it’s for the general welfare” then why do we need the rest of the document.  The founders obviously meant to ENUMERATE (a fancy word for LIST) the powers of Congress.  Even the USSR Constitution gives praise to the general Welfare, but then it specifically states health care is a right (which it’s not per http://towneforcongress.com/economy/health-care-platform-announcement)
  • 2) The meaning of “promote” is VERY different from “provide”  (of course Art 1 Sec 8 DOES in fact state “provide”)  The government is there to PROMOTE prosperity, not PROVIDE prosperity to each citizen.  which leads to #3
  • 3) In today’s world, we define/associate welfare as “taking (stealing, really) from the rich and giving to the poor.”   However, in the times of the founders, general welfare pretty much just meant the overall wellness of the society, and since many folks had a very strong affection for their property, it was blatantly obvious the government was not supposed to steal from one to give to the other.
• For the Article 1, Section 8, one should also read Federalist #41
  • Point 1 from above still applies, but not as strongly.  Point 2 doesn’t apply, but point 3 does.
  • 4) Note the term is “general Welfare”, not “individual Welfare”.  Congress is NOT allowed (well, they do, but let’s pretend we are a Republic for a moment) to favor special groups or individuals.  To suggest otherwise is nonsense, as how does stealing from Paul to pay Peter – which is basically what gov’t run health care IS - increase the general Welfare.
  • 5) There was a fair amount of controversy over this clause at the time the Constitution was under ratification (I think it would have been best to stick with the wording in the preamble, “provide for the common defense, PROMOTE the general Welfare”, so by reading them one can understand the public sentiment and thoughts at the time.  The Federalist Papers from Madison, Hamilton, and Jay were published anonymously to address concerns from the public.  This is taken from #41   http://www.scribd.com/doc/18612628/The-Federalist-Papers

CRIMINAL AND TORT LAWS

• From Article 1, Section 8 “To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;”

• Very limited authority over criminal or tort law, which was left to the States to decide for themselves

IMMIGRATION

• From Article 1, Section 8 “To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;”

• Explain 14th Amendment, subsequent creation of legal vs. illegal immigrants, jurisdiction and “anchor” babies

TAXATION

• Article 1 Section 7 - “All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.“
• Article 1, Section 8 – “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”
• Article 1 Section 9 – “No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”  (capitation = poll tax)
• 16th Amendment – “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration”
• Discuss income tax and the advent of direct federal taxation of individuals

THE MONEY POWER

• Article 1, Section 8 – “To borrow money on the credit of the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;”

• Article 1 Section 9 – “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”

• Discuss lawful money, “worth less than a Continental,” “pound sterling silver” dollar/thaler and 1 constitutional dollar set to about 26 grams of silver.

SLAVERY AND INVOLUNTARY SERVITUDE

• 13th Amendment – Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

• Congress has no ability to force citizens to do any tasks, which includes military draft.  If the freedoms and lives of this country are truly in danger, there will be no need for a draft.

Constitutional Amendments and Convention (Article V)

• “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;”

Presidential Elections

• 12th Amendment – “The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.”

PAY RULES

• 27th Amendment – No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened
• Congress gives itself an “automatic” pay increase with the CPI, plus congressional pension, healthcare plans.

IMPEACHMENT

• Art 1, Section 2 – The House of Representatives “shall have the sole power of impeachment”  – Why???
• Art III, Section 2 – “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”
• Art III, Section 3 “The Congress shall have power to declare the Punishment of Treason”

PATENTS and POST OFFICES

• From Article 1, Section 8 – “To establish Post Offices and Post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

• Briefly discuss AMTRAK, Post Office vs UPS/FEDEX, etc.

BILL OF RIGHTS

The United States Constitution was written under the principle of “positive grant.” This means the federal government is authorized to exercise only the powers which are specifically given to it by the Constitution, and nothing more.

• FIRST AMENDMENT “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
• THIRD AMENDMENT “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
• FOURTH AMENDMENT – “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”   (Mention PATRIOT Act)

• NINTH AND TENTH AMENDMENTS “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
• Should have repeated the 10th Amendment 5+ times so it would be noticed!

END

Appendix – “Powers of Congress” from Article 1, Section 8

• The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

• To borrow money on the credit of the United States;

• To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

• To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

• To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

• To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

• To establish Post Offices and Post Roads;

• To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

• To constitute Tribunals inferior to the supreme Court;

• To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

• To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

• To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

• To provide and maintain a Navy;

• To make Rules for the Government and Regulation of the land and naval Forces;

• To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

• To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

• To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;

• To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.